Tuesday, January 19, 2016
Not surprisingly, the Supreme Court granted the petition for certiorari in United States v. Texas, and the nation may receive the final word on the lawfulness of the 2014 program expanding deferred action for the undocumented parents of parents of lawful permanent residents and U.S. citizen children. The case raises important, complex, and significant legal issues with national ramifications. Although the immigration issues are critically important, the more general issues implicated by the case, such as the relative power of the Legislative and Executive Branches in the enforcement of the law, go well beyond immigration.
The case is rooted in many years of controversy over immigration and immigration reform. The legal issues are technical and have been, and will be, much-debated over the coming months. Many critics have vociferously challenged the Obama administration’s executive action is attempting to arrogate power bestowed by the Constitution on Congress. My firm sense is that the constitutional dialogue is a healthy one about the boundaries on congressional and executive power on immigration.
To fully understand United States v. Texas, one also must appreciate that it is a product of at least a decade of national debate over immigration. There are many actors in long dialogue on immigration reform.
Over at least the last decade, Congress has debated various forms of immigration reform legislation. An enforcement-oriented bill passed by the House of Representatives led to memorable public protests in cities across the country in 2006. To this point in time, no legislation has been passed and frustration exists among many Americans, immigrants, and political leaders.
In this vein, a potent political movement led by undocumented college students had demanded more narrowly focused reform of the immigration laws. The DREAM Act (Development, Relief, and Education for Alien Minors) has been proposed regularly in Congress, with support from, among others, conservative Senator Orrin Hatch (R-Utah). Although garnering substantial support, it has not attracted sufficient support to be passed. Most iterations of the DREAM Act would allow undocumented persons who came here as children to regularize their immigration status.
Congress has debated many bills that would have reformed the immigration laws. In the most recent attempt, the Senate in 2013 passed a bipartisan comprehensive immigration reform bill that would have provided a path to legalization for undocumented immigrants, reformed legal immigration provisions, and bolstered immigration enforcement. Unfortunately, the bill never was sent to the full House of Representatives.
The failure of Congress to enact immigration reform had impacts as state and local governments in recent years have enacted immigration-related laws. Many of the laws were designed to facilitate immigration enforcement and implicated questions of federalism and federal supremacy. The most well-known law of this type is Arizona’s S.B. 1070, which the Supreme Court struck down as preempted by federal immigration law in large part in 2012 in Arizona v. United States.
Other states, such as California, have sought to better integrate immigrant residents into the greater community. Laws extending driver’s license eligibility to undocumented immigrants, and allowing them to pay resident tuition at public universities, exemplify those kinds of efforts.
The deferred action program has attracted considerable amount of attention. However, the Obama administration has made removals and immigration enforcement high priorities. Through its Secure Communities and later Priority Enforcement Program, the administration targeted immigrants convicted of crimes for removal. The hope was to establish a strong enforcement record and ultimately to convince Congress to enact comprehensive immigration reform. To that end, the Obama administration has set annual deportation records a few years in a row and regularly removes hundreds of thousands of immigrants a year. It also has taken enforcement-oriented positions, including detention of families and recently announced raids, attempting to deter Central Americans fleeing violence from coming to the United States.
The Obama administration implemented the Deferred Action for Childhood Arrivals Program in 2012. In November 2014, the administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). A federal court in South Texas enjoined the implementation of the program and the U.S. Court of Appeals for the Fifth Circuit affirmed the injunction in November. The Supreme Court now will review the case.
The Supreme Court
The Supreme Court has had regularly heard immigration cases for a number of years, often addressing cases in which the Executive Branch sought to remove long term lawful permanent residents for criminal offenses. Last Term, the Court, for example, decided Mellouli v. Lynch and rejected the effort to remove an immigrant for a minor drug paraphernalia conviction. In 2013, the Court rejected a removal order in Moncrieffe v. Holder based on a conviction involving the possession of a small amount of marijuana for personal use.
The Court’s major immigration decision in recent years is Arizona v. United States. The Court made it clear that federal law was supreme when it comes to immigration and invalidated several provisions of the Arizona law that it found intruded on that power. The decision surprised some Court observers who predicted that the Roberts Court might uphold the Arizona law in its entirety.
United States v. Texas
In United States v. Texas, the technical legal questions are as follows: (1) do the states have standing to challenged DAPA; (2) whether the Secretary of Homeland Security’s guidance known as DAPA seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action is arbitrary and capricious or otherwise not in accordance with law; and (3) whether the guidance was subject to the Administrative Procedure Act’s notice-and-comment procedures. In the background of the briefs is a claim under Article II of the Constitution that imposes a duty on the President unlike that he “shall take Care that the Laws be faithfully executed.” The Supreme Court specifically stated that the constitutional question was before it.
The politically charged nature of the issue brought amici briefs on the cert petition from many different quarters, including a bipartisan Former Members of Congress, Major Cities Chiefs Association, 184 Members of the U.S. House of Representatives and 34 Members of the U.S, Senate, the state of Washington and other states, former federal Immigration and Homeland Security Officials, Mayors of New York and other cities.
The outcome of United States v. Texas will be debated. What does seem clear is that the nation is engaging in a robust national debate about immigration law and policy. We will see how that latest chapter unfolds before the Supreme Court.